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Industrial hygienists applaud OSHA reform (7/14)

July 14, 2010
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The American Industrial Hygiene Association has told the House Labor and Education Committee that it applauds the committee’s efforts to strengthen OSHA across a number of fronts. The committee is holding hearings this week on the bill, which if passed would usher in the most radical changes to the Occupational Safety and Health Act since its enactment in 1970.

Passage in the House, where Democrats hold a comfortable majority, is expected. The outlook in the Senate is not as clear.

AIHA supports efforts to provide whistleblower protections to employees reporting any injury, illness, or unsafe condition to the employer. For those employees who report such conditions, employees should not face retaliation nor should an employee be required to perform any employer work if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of the employee or other employees, according to the association.

AIHA supports efforts to protect workers by requiring correction of a hazard during such time that a citation for a serious, willful, or repeated violation has been filed yet is being contested by the employer. However, for those employers who file a notice of contest of the citation and request a stay of correction of the hazard, AIHA supports language that would provide the employer with the means to demonstrate likelihood of success on its contest to the citation, the employer will suffer irreparable harm absent a stay, or a stay will adversely affect the health and safety of workers.

Amending the OSH Act to address the issue of civil and criminal penalties is “long overdue,” according to AIHA. The group supports increasing the penalties for both civil

In addition, AIHA supports language in the bill that considers the employer’s history of violations and would provide for additional monetary increases in civil penalties if a willful or repeated violation caused or contributed to the death of an employee. Criminal Penalties.

States AIHA: “Under the “Protecting America’s Worker Act” (PAWA, HR 2067), an employer could not be convicted under the criminal law unless that employer has acted “willfully” and such willful act caused the death or serious injury to a worker. This would require proof that an employer knew not only that its actions were wrong, but that they were unlawful as well. This ‘willful’ standard is not a familiar one in the criminal law context and the norm is to require a ‘knowing’ standard of proof in which an actor knows that his or her conduct was wrong. Under this standard, employers cannot escape liability by claiming that they did not know what the law required. Note: under either standard a prosecutor would still have to prove that an actor is guilty beyond a reasonable doubt.

“AIHA is pleased that proposed language in HR 5663 would change a ‘willful’ act to ‘any employer who knowingly violates’. AIHA supports this change.”

AIHA’s position statement continues: “Another proposed change in HR 5663 as compared to PAWA would alter the definition of an employer who would be subject to criminal penalties from “any responsible corporate officer” to new language stating “any officer or director”. Under current law, only a corporation or sole proprietor can be liable for criminal penalties. The language in HR 5663 broadens this definition so high-level officials (individuals) who act criminally can be prosecuted. This change clarifies that the criminal penalties can reach up to the higher levels of a company, providing that an officer or director who has engaged in criminal conduct that causes the death or serious injury to a worker can be prosecuted.

“Finally, AIHA supports language that would increase a criminal penalty violation from a misdemeanor, resulting in minimal penalties, to a felony. Consistent and substantial penalties are one of society’s primary means to deliver some measure of justice and improve conditions that affect public health and worker health and safety. However, criminalizing willful violations through changes in the regulations must be carefully considered and applied. The standard of evidence for willful violations will have to be higher than it is today and OSHA and MSHA inspectors will need increased training and skill development to meet the level of evidence required.”

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